Cockayne, James --- "Members of Yorta Yorta Aboriginal Community v Victoria; Indigenous and Colonial Traditions in Native Title'" [2001] MelbULawRw 25; (2001) 25(3) Melbourne University Law Review 786

CASE NOTES

Members Of The Yorta Yorta Aboriginal Community v Victoria [*];

Indigenous And Colonial Traditions In Native Title

INTRODUCTION

In Yorta Yorta, the Full Federal Court, handing down its decision in an appeal of an earlier decision by Olney J,[1] continues the development of native title in Australia. Yorta Yorta provides a number of important insights into the trends of that development. In this case note, I want to focus on those insights which relate to the role of ‘tradition’ in native title.[2] Yorta Yorta provides two very different approaches to the concept of tradition: one is based on an understanding of traditions as discrete, historical practices, the other on treating traditions as socio-legal orders.[3] These approaches offer two very different possibilities for the development of native title: one, along a colonial path, and the other, on a more reconciliatory path. I suggest that the latter path is both legally and socially preferable, and that the High Court should be guided by it in its upcoming judgment in Western Australia v Ward.[4] Only by adopting an understanding of indigenous traditions as socio-legal orders can we transform native title from a colonial tradition into a vehicle for reconciliation.

II THE CASE

A Background

From the outset, a number of aspects of the claim by the group calling themselves the Yorta Yorta indicated that this case would play an important part in the development of native title. The claim, over a large area of land and waters in northern Victoria and southern New South Wales,[5] was the first native title application to come on for trial after the enactment of the Native Title Act 1993 (Cth) (‘NTA’).[6] More than 500 respondents were joined to the claim, including three States.[7] It raised central questions about the impact of European settlement on native title rights and interests, indigenous dispossession and the consequent abandonment of traditional indigenous lifestyles, as well as evidentiary issues in cases where it is claimed that the foundation for native title disappeared long ago.[8]

The matter was originally referred by the National Native Title Tribunal to the Federal Court for determination in 1995. The trial commenced in 1996 and concluded in May 1998. The hearing lasted 114 days, 201 witnesses were heard, 48 witness statements were admitted into evidence, and the transcript comprised 11 664 pages.[9] Judgment was given in December 1998.

B At Trial

Olney J found against the claimants. His decision was based on a finding of fact that, by the end of the 19th century, the impact of European settlement in the claim area was such that the claimants’ forebears had lost their traditional connection with the land.[10]

Olney J held that, of all the evidence, the most credible source of information about traditional laws and customs was the amateur anthropological observations of the pastoralist Edward Curr from the 1840s, and not the contemporary accounts of the claimants.[11] Olney J compared the evidence of the lifestyle of the claimant group’s ancestors at various times with the evidence of traditional practices contained in extracts of Curr’s work.[12] In his opinion, the evidence was silent as to the continued observance, in the late 19th century, of the ‘aspects of traditional lifestyle’ observed by Curr.[13] In contrast, a copy of an 1881 petition to the Governor of New South Wales calling for a land grant, signed by 42 local Aborigines, provided ‘positive evidence emanating from the Aboriginals themselves’ of the abandonment of this ‘traditional lifestyle’.[14]

Olney J held that, by abandoning their traditional lifestyle, the claimant group’s ancestors had severed the observance and acknowledgment of traditional laws and customs necessary to found native title rights and interests, and native title had, as a result, been extinguished. Once expired, the native title could not be revived, notwithstanding the genuine efforts of the claimants to revive the lost culture.[15] Recalling the words of Brennan J in Mabo v Queensland [No 2],[16] Olney J held that ‘[t]he tide of history [had] indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs.’[17] Since this conclusion was determinative of the whole matter, it was not necessary for him to deal with arguments raised by some of the respondents that native title had in any event been extinguished, nor to make comprehensive findings about the current beliefs and practices of the claimant group.[18] He dismissed the application.

C On Appeal to the Full Federal Court

On appeal, the appellants argued primarily that the trial judge erroneously adopted a ‘frozen in time’ approach.[19] They contended that Olney J failed to give sufficient recognition to the capacity of traditional laws and customs to adapt to changed circumstances in his interpretation of ‘traditional laws acknowledged and the traditional customs observed’ under s 223 of the NTA.[20] As a result, he had ‘wrongly equated the existence of native title with the existence of a “traditional society” or a “traditional lifestyle”’.[21]

The appellants’ second argument was that Olney J had failed to take significant and important evidence into account — in particular, the evidence of living witnesses bearing upon the situation in the late 19th century.[22] They argued that the learned trial judge approached the matter from the wrong point in time, commencing with the past rather than, as he should, with the present.[23] A process of inquiry which commenced with an analysis of the situation at the time of annexation and traced traditional laws and customs forward to the present was itself, in the submission of the appellants, likely to result in an erroneous ‘frozen in time’ approach being adopted.[24] According to the appellants, the focus should not be on whether laws and customs within the historical tradition of the group had survived through to the present day, but whether the group’s present day laws and customs could be traced back to the former inhabitants.

The respondents contested the ‘frozen in time’ argument, submitting that Olney J gave proper recognition to the capacity of traditional laws and customs to adapt to changed circumstances.[25] They argued that Olney J’s finding of expiry of native title was correctly made, that it was a finding that was open on the evidence, that it had not been shown to be wrong and that it resolved the whole case.[26]

III THE JUDGMENTS

The Full Court delivered two judgments. The majority, Branson and Katz JJ, held that Olney J had not adopted a ‘frozen in time’ approach, but that if he had it would have been wrong.[27] His failure to refer expressly to, or evaluate, particular aspects of the evidence did not indicate that those aspects had not been taken into account.[28] Since the finding of fact that the tide of history had washed away any basis for native title by the late 19th century was open to Olney J, and as he had not erred in the process of making this finding, the appeal should be dismissed.

Black CJ dissented, finding that Olney J had erred by applying too restrictive an approach to the concept of what is ‘traditional’,[29] and by failing to make findings on various aspects of the evidence.[30] Black CJ would have allowed the appeal and remitted the matter to the trial judge for further hearing.[31]

The appeal was, accordingly, dismissed.[32] The reasons for judgment reveal a consensus on two central points: first, that the traditional laws and customs that form the foundation for native title may adapt and change without native title being lost;[33] and, second, that a ‘frozen in time’ approach to the determination of native title would be incorrect.[34] In the remainder of this Part, I will attempt to draw out how this apparent consensus conceals two very different approaches to native title. To do this, I will focus on the role ‘tradition’ plays in each of the judgments.

A The Reasons for Judgment of the Majority

Branson and Katz JJ upheld Olney J’s approach to the concept of ‘tradition’ and determined that no case had been made out for overturning the decision which flowed from it.[35] It was, in their opinion, open to Olney J to find that the Yorta Yorta community had ‘lost its character as a traditional community.’[36]

For the majority, the case turned on the correct interpretation of s 223 of the NTA, and in particular the meaning of the term ‘traditional’.[37] In their opinion, the correct conclusion to be drawn from the legislative history[38] and prior judicial interpretation[39] was that, while ‘traditionally-based’ laws and customs are maintained, native title survives.[40] ‘Traditional’ practices need not be ‘frozen’ at any point in the past, and can retain their ‘traditional’ characteristics despite ‘evolutionary or adaptive changes to the subject matter of a tradition.’[41] In the majority’s opinion, the ‘traditional’ essence of practices is preserved if the change is itself ‘according to the practices or customs’ observed.[42] Native title will survive the modification of those ‘traditionally-based’ practices, but it will be lost when they cease to be ‘properly characterised as traditional’[43] — when the modifications to the practice ‘reflect a breaking with the past rather than the maintenance of the ways of the past in changed circumstances.’[44] The majority argued that the test of whether a law or custom is traditional is not subjective,[45] but objective: ‘The primary issue is whether the law or custom has in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community.’[46]

The majority rejected the appellants’ argument that a number of statements in Olney J’s judgment[47] indicated that he had adopted a ‘frozen in time’ approach, and held that, even if he had, it would not be determinative of the outcome of the appeal.[48] In their view, it was open to Olney J to find that the modifications the Yorta Yorta had made to their way of life amounted to an abandonment of their ‘traditional way of life’.[49] By abandoning this way of life, they had ‘ceased to exist as a traditional indigenous community’,[50] they had lost their ‘traditional character’.[51]

In characterising the Yorta Yorta in this way, the majority moved from their earlier test, in which the ‘primary issue’ was identified as the continued observance of discrete laws and customs that can be proven to have been handed down from generation to generation,[52] to a test based on identity. The claimants failed this test because they failed to establish the requisite continuity of community acknowledgment of traditional laws and customs.[53] By abandoning traditional laws and customs, the claimant group’s ancestors had ceased to be an ‘identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs’.[54]

The Yorta Yorta’s ancestors lost their traditional identity as a result of dispossession of their land, though dispossession need not lead to such a loss of traditional character.[55] The majority held that there was evidence from the appellants themselves which indicated that the laws and customs practised by earlier members of the claimant group relating to descent, language, initiation, protocol and ceremonies had been lost or had fallen into disuse,[56] that the claimants had lost their ‘traditional means of support’ and ‘traditional ways’,[57] and that they had not always identified themselves as ‘Yorta Yorta’.[58] Because the community disappeared as a traditional indigenous community, the native title it may have possessed also disappeared.[59]

This conclusion sits uncomfortably with a number of the majority’s conclusions relating to Olney J’s approach to the evidence.

First, in the majority’s opinion, since traditional laws and customs evolve, it is not fatal to a claim for native title that the claimant fails to establish the precise nature of the traditional indigenous laws and customs acknowledged and observed at the time of the acquisition of sovereignty by the Crown, ‘if the traditional character of currently observed laws and customs can be established by other means.’[60] The majority did not explain what such ‘other means’ might entail. One method might be for contemporary witnesses to explain how their practices can be traced back to the customs and laws of the time of the Crown’s acquisition of sovereignty; but that method was adopted by the claimants and rejected by both Olney J and the majority.[61]

Second, in relation to the 1881 petition, the majority noted that:

The evidentiary weight to be given to the contents of a petition, almost certainly drawn with European help ... and not signed by all, or possibly even the majority, of the asserted Aboriginal community or group, will be limited. ... It may also, of course, reflect an appreciation that the Governor and his advisers might place little positive value on adherence to traditional Aboriginal laws and customs.[62]

The last comment, in particular, suggests that the majority was alive to the possibility that indigenous cultures might use tactics of resistance and subversion to ensure the survival of their cultures and traditions. Nevertheless, the majority concluded that such a petition did tend to suggest, or at least was consistent with Olney J’s finding, ‘that the petitioners had lost their traditional means of support and were turning away from traditional ways.’[63]

The majority provided no explanation why the petition was, on the balance of the evidence, properly regarded as an example of the abandonment of traditional ways, rather than a subversive act intended to better maintain, even if in a clandestine manner, those ways. Instead, the majority concluded that, given the complexity of the evidence, and the caution to be exercised before disturbing a finding of fact in such a complex case, the approach taken by Olney J was open to him.[64] His failure to refer expressly to, or to evaluate, particular aspects of the evidence, did not indicate that those aspects had not been taken into account.[65] The appeal should, the majority concluded, be dismissed.

B The Reasons for Judgment of Black CJ in Dissent

Black CJ adopted a subtly different approach to the concept of tradition and, as a result, reached a very different conclusion from the majority.[66] Black CJ would have allowed the appeal and remitted the matter to the trial judge for further hearing[67] since, in his opinion, while Olney J had not adopted a strict ‘frozen in time’ approach, he had nevertheless applied too restrictive an approach to the concept of ‘traditional’[68] and had consequently failed to consider certain relevant aspects of the evidence.[69]

For the majority, traditional laws and customs remain traditional only so long as they maintain the ways of the past, rather than breaking with them.[70] Laws and customs maintain their traditional character through the dynamic of ritual, recalling the past and representing it in the present. As ritual practices, traditions attempt to retain an unchanging essence. What we see emerging in Black CJ’s reasons for judgment is the germ of an approach which treats ‘tradition’ in an altogether different way, understanding the ‘traditional laws and customs’ contemplated by s 223 of the NTA not as traditions in themselves, but as laws and customs drawn from a particular indigenous tradition, a particular indigenous socio-legal order. These ‘traditions’ are fundamentally dynamic, normative frameworks, reaching across generations. Traditional laws and customs are not conceptualised as freestanding practices, but as interrelated elements within these normative frameworks.

Black CJ stated that, in relation to ‘traditional’ laws and customs, s 223 of the NTA is not concerned ‘with what is dead, frozen or otherwise incapable of change.’[71] Rather,

far from being concerned with what is static, the very notion of ‘tradition’ as involving the transmission from generation to generation of statements, beliefs, legends and customs orally or by practice implies recognition of the possibility of change.[72]

While the majority focused on the unchanging, ritual aspects of tradition, Black CJ focused on its dynamic aspects. Whereas the ‘primary issue’ for the majority is whether today’s laws and customs have their roots in earlier traditions,[73] maintaining an essential traditional character, for Black CJ the question is, conversely, whether today’s tradition is a product of evolution from earlier laws and customs.[74] For the majority, traditional practices evolve along their own trajectories, while for Black CJ laws and customs are connected together within one continuity of tradition, so that even ‘practices that are not “traditionally based”, in the sense that they are not rooted in the past, may still illuminate and support other practices that are “traditional” in the sense used in s 223.’[75] The tradition referred to in s 223 of the NTA is, this statement suggests, a collective, praxiological system, rather than a discrete, individual practice.

It is important not to overstate the extent to which Black CJ himself makes these distinctions. For example, Black CJ and the majority relied on the same Macquarie Dictionary definition of ‘tradition’.[76] I am attempting here to draw out the underlying distinctions between the two approaches to explain the different results reached by the majority and Black CJ.

In my reading, whereas the majority saw the native title inquiry as an inquiry into the survival of particular traditional practices or ‘ways’[77] — a traditional ‘lifestyle’ made up of a bundle of traditional practices — the approach underlying Black CJ’s judgment treated it as an inquiry into the continued observance, by a group, of a socio-legal tradition — the maintenance of a particular socio-legal order. For Black CJ, the requisite tradition can be maintained even if it is not practicable to maintain a traditional presence on or occupation of the land,[78] since ‘native title rights and interests may persist despite the cessation of a traditional — in the sense of pre-contact — lifestyle.’[79]

Whereas for the majority the ‘turning away from traditional ways’ amounted to an abandonment of the traditions which give rise to native title, for Black CJ the abandonment of a traditional lifestyle does not necessarily mean that the group will cease to represent an ‘identifiable community’ capable of possessing native title.[80] What matters is the maintenance of a certain socio-legal order, not its particular manifestations.

The contrast between Black CJ’s underlying approach and that of the majority is highlighted by Black CJ’s discussion of Yanner v Eaton.[81] In Yanner, the High Court held that alterations to traditional hunting practices such as the use of non-traditional means to hunt (in that case, a motorboat) did not alter the essentially traditional nature of the activity.[82] It was, in Gummow J’s terms, ‘an evolved, or altered, form of traditional behaviour.’[83] While the majority in Yorta Yorta did not specifically refer to Yanner, it did note that ‘a tradition of hunting in a certain area may be maintained notwithstanding that ... the tools used may have changed over time (for example, from spear or throwing stick to rifle).’[84]

It seems reasonable to conclude that, like Black CJ, the majority concurred with the High Court’s characterisation of Yanner’s hunting activities as ‘traditional’. But Black CJ takes the argument a step further. Once we recognise that traditional rights such as hunting rights can adapt and evolve, he writes,

it can also be readily appreciated how less physical or tangible manifestations of traditional laws and customs can be seen to be rooted in the past and to be traditional customs in the adapted form currently observed. Adaptations of this nature may manifest themselves in many ways including, to take one possible example, changed leadership structures within modern Aboriginal society.[85]

Black CJ recognised here that ‘traditions’ comprehend more than simple bundles of rights and interests, practices and ‘ways’ — they are socio-legal orders, involving governance structures and other ‘less physical or tangible manifestations’. What is more, he took the important step of recognising that indigenous traditions can exist even ‘within modern Aboriginal society’. By implication, the existence of ‘modern’ Aboriginal social structures does not necessarily indicate the abandonment of ‘traditional’ laws and customs. For Black CJ, indigenous traditions can survive even the massive social changes occasioned by the arrival of modernity, as in Ward,[86] a case concerning native title in an area of the East Kimberley in which the arrival of settlers and miners in the 1880s and 1890s caused massive social dislocation in indigenous communities.[87]

The different approaches to tradition offered by Black CJ and the majority become crucially important in relation to the treatment of the evidence at trial. For Black CJ, the consequence of the recognition that traditions are fundamentally evolutionary is that

the correct approach to an application for the determination of native title will, ordinarily, involve the making of comprehensive findings of fact about what are claimed to be the traditional laws presently acknowledged and the traditional customs presently observed that provide the foundation for the asserted native title rights and interests ... A process that begins ... with an assessment of what is claimed at the present time has the fundamental advantage of allowing adaptations and evolution to be seen for what they are and, in some instances, to be recognised at all.[88]

Black CJ here endorsed what we might term a ‘retrospective’ approach to the determination of the existence of ‘traditional’ laws and customs. For him, the proper approach is not that of Olney J, which involves ‘making findings about the past and then progressing forward from that point’,[89] but to characterise current laws and customs by tracing their roots back, to see whether they have evolved through a process of handing down from the traditional laws and customs which were observed at the time of the acquisition of sovereignty.

Black CJ displayed a similar logic in dealing with the appellants’ alternative argument that the evidence was not silent in the way Olney J stated in relation to the continued observance in the late 19th century of aspects of traditional lifestyle, customs and laws.[90] The evidence of living witnesses to which the appellants had pointed was, in Black CJ’s view, so integral to their argument that contemporary laws and customs were adapted versions of the prior tradition that it

needed to be dealt with before a finding could be made that native title had come to an end. Once appropriate recognition is given to notions of adaptation and change and the broader concept of what is ‘traditional’ ... [it is] inevitable that the evidence of living witnesses about these matters required full assessment before a decision could be made about whether all was lost over 100 years ago.[91]

By giving the writings of Edward Curr from the 1840s greater weight in determining the nature of traditional laws and customs in 1788 than contemporary indigenous oral histories, Olney J risked neglecting the oral tradition ‘that was of its very nature likely to be reflective — and indeed expository — of changes in laws and customs that occurred over time.’[92]

This risk was realised in Olney J’s conclusion that the evidence was silent as to the presence of traditional laws and customs during the late 19th century.[93] The failure to make findings on this evidence was a material error which meant that Olney J’s findings should not stand.[94]

Olney J had not, in Black CJ’s view, applied a strict ‘frozen in time’ approach, excluding from the notion of ‘traditional’ laws and customs ‘any that were not virtually the same as those that were proved to have been observed by the ancestors of the claimant community’.[95] Instead he had

adopted an approach that did not give appropriate recognition to the extent to which ‘traditional’ laws and customs can adapt and evolve and still have the character of ‘traditional laws and customs’, capable of providing a continuing foundation for native title rights and interests.[96]

By failing to deal with the possible evolution and adaptation of traditional practices during the late 19th century, and instead searching for evidence of the particular aspects of traditional lifestyle picked up by Curr, Olney J ‘failed to give proper recognition to the relevance of adaptation and change in the traditional laws and customs of the claimants’ ancestors at about this time.’[97]

The shortcomings of this approach were, in Black CJ’s opinion, exemplified by Olney J’s approach to the 1881 petition. While the petition could legitimately be used as evidence of the abandonment of a traditional lifestyle by some Aboriginal people, it did not ‘deny the continuance, in adapted or evolved form, of an acknowledgment of laws and an observance of customs that can properly be characterised as “traditional”’.[98]

This conclusion contains another subtle departure from the reasoning of the majority. First, whereas the majority took the disappearance of traditional indigenous lifestyles as evidence of the disappearance of the traditions which give laws and customs their s 223 ‘traditional’ character, Black CJ distinguished between traditional indigenous lifestyles and a broader socio-legal tradition. Second, the effect of Black CJ’s argument is to suggest that, where the evidence is silent as to the continued observance, at any given time, of a particular indigenous tradition, there should be a presumption that the tradition continued to be observed in adapted forms — forms that made it disappear from the colonial view. I will return to this question of the ‘presumption of adaptation’ later.

In Black CJ’s opinion, Olney J’s approach to the evidence failed to deal adequately with a number of evidentiary obstacles to a finding that the ancestors of the claimant community had abandoned their traditional laws and customs. In particular, Olney J failed to avoid the risk inherent in using Curr’s diaries of relying on a ‘historical snapshot of adventitious content’ which would ‘reveal little or nothing of a process of adaptation and change’ within the indigenous community in question.[99] By relying on such ‘snapshots’, Black CJ noted, we fall prey to misconceptions about adaptation and change, and may fail to recognise the ‘extent to which adaptation and evolution can take place without laws and customs ceasing to be “traditional”.’[100] Precisely because of the fundamental adaptability and evolution of tradition, such an inquiry should not be conceived of as an

inquiry about a single historical event concerning which the written record may be a very good guide — such as whether a vessel was lost with all hands — but something entirely more complicated and likely to involve a consideration of events over a lengthy period.[101]

Unless viewed over a ‘substantial time frame’, there is a real likelihood of a ‘false conclusion’, because of the failure to account for the evolution of tradition.[102] Because of these errors, Black CJ would have upheld the appeal.

IV THE COLONIAL TRADITION OF NATIVE TITLE

As I have characterised their reasons for judgment, the majority and Black CJ offer two very different approaches to the role of tradition in native title. The majority offers a traditional indigenous lifestyle approach. According to this approach, contemporary laws and customs will be ‘traditional’ if they are evolved or adapted forms of the practices, ways and lifestyle of the claimant group’s forebears at the time of the acquisition of sovereignty by the Crown. The socio-legal order approach, which I have suggested is implicit in Black CJ’s judgment, is altogether different. According to this approach, contemporary laws and customs will be ‘traditional’ if they issue from an indigenous socio-legal tradition which is the modern, adapted form of the tradition under which the forebears of the claimant group lived at the time of the acquisition of sovereignty by the Crown. In this section, I want to draw out the implications of these different approaches for native title. These implications play out in a number of narrowly jurisprudential ways; but they are perhaps more important at a social level, since they say different things about what kind of indigenous communities the common law will recognise as possessing native title.

In my opinion, the traditional indigenous lifestyle approach of the majority is wrong in law. It adopts too narrow an understanding of what is ‘traditional’. It imposes a test of communal identity, measuring the identity of the entire claimant group against historical yardsticks of ‘traditional lifestyle’. In my view, the NTA poses no such test of identity.

The approach is also wrong in a broader, sociological sense, a sense perhaps better served by saying that it develops the law of native title in a way that I believe would be wrong for our society, and our law, to choose. It is important to recognise this social aspect of native title. Jeremy Webber has argued that the sociological moment of native title was one of ‘regret’.[103] In the rest of this case note, I will argue that, from this origin of regret, native title is slowly developing into a tradition of colonialism, but that the question of ‘tradition’ provides a sociological moment for reshaping that tradition.

Native title is itself a tradition — a handing down of statements, beliefs, norms, customs, an ‘intercommunal body of norms governing indigenous/non-indigenous interaction.’[104] The traditional law of native title provides a cohesive influence on native title determinations, but is, at the same time, a source and resource of change.[105] Like any tradition, it is at once unchanging and dynamic.

The central question that Yorta Yorta raises about the tradition of native title is that of its developing role in reconciling two independent legal and social traditions. How, as a social phenomenon, is native title dealing with the competing traditions with which it purports to deal: indigenous traditions and the tradition of the common law?[106]

At a basic practical level, the native title tradition is, notwithstanding High Court comments to the contrary,[107] a branch of the larger common law tradition.[108] It is administered by common law judges in common law courts, with common law rules of evidence under common law value systems. Seen from this perspective, native title cannot escape its predominantly common law character. The indigenous tradition becomes a source for elements of the native title tradition, controlled and constructed by the non-indigenous tradition;[109] it is colonised by the common law. This colonial aspect of native title is emphasised by the extent to which its basic contours are those of the common law. There can be no recognition of indigenous rights or interests which would ‘fracture a skeletal principle’ of the common law,[110] nor where such recognition is ‘fundamentally inconsistent with its basic precepts by reason of being repugnant to natural justice, equity and good conscience’.[111] Precisely because of the dominance of this approach in native title jurisprudence, because native title cannot be inconsistent with basic common law rights, native title has been held not to extend to rights over sea areas which contradict the public right of navigation or the public right to fish.[112] We should not agree that native title is a ‘hybrid’,[113] if that implies equality of input, nor a ‘recognition space’ for the two traditions,[114] if that implies that it is as concerned with the recognition of the common law by indigenous traditions as vice-versa. If native title ‘has its origin in and is given its content by the traditional laws’ of the indigenous tradition, as Brennan J suggested in Mabo,[115] then it has its conclusion in and is given its form by the common law.

Nevertheless, it is important to acknowledge that native title does offer the occasion for the modification of the common law in a process of accommodating pre-existing native interests previously unknown to it.[116] It provides a unique (sui generis)[117] opportunity for the transformation of the common law tradition, and for the generation of a body of law which gives meaningful expression to, and reconciles, elements of two competing socio-legal orders. The approaches offered in Yorta Yorta are two different responses to this opportunity for development. In the rest of this section, I want to explain how the traditional indigenous lifestyle approach develops native title in a way that retains, and perhaps even emphasises, the colonial heritage of native title, while the socio-legal order approach minimises those colonial tendencies by giving greater respect to indigenous traditions.

The native title tradition is colonial in both historical and teleological senses. It is colonial in a historical sense because, as a product of the common law tradition, it is the product of the legal tradition of a colonising power. It is colonial in a teleological sense because it serves the ends of that colonial power, using the resource of the indigenous traditions to serve and protect the colonial power — the Crown — and the legal interests which issue from it. The majority’s traditional indigenous lifestyle approach manifests these colonial tendencies in three important ways: ontologically (in the colonising of indigenous identity), historiographically (in the colonising of indigenous histories) and epistemologically (in its approach to ‘tradition’).

First, at the ontological level, the majority’s approach constructs indigenous identity in a way which serves the ends of the colonial power. The majority’s approach treats (indigenous) traditions as a means for maintaining the ways of the past through changed circumstances; they are, in this sense, essentially static, carrying the past, unchanged, into the present and future. This taxonomy contrasts the primitive stability of tradition with the adaptive processes of modernity.[118] This approach offers an image of traditional indigenous lifestyle as a lifestyle from and of the past, a lifestyle inherently and ontologically opposed to modernity, a dying culture, struggling not to be ‘washed away by the tide of history’. To be (recognised as) traditional, the ways of contemporary Yorta Yorta must match those of the Yorta Yorta of the past; contemporary Yorta Yorta identity must measure up against the yardstick of ‘traditional’-ness drawn from Edward Curr’s diaries. To be traditional, they must match a colonial construct of indigenous identity.[119] Colonial constructions of indigenous identity are preferred even over indigenous interpretations.

This approach cannot account for the complex historical processes of appropriation, compromise, subversion, masking, invention and revival which colonised cultures undertake.[120] It creates an indigenous identity ‘frozen in time’, shackling the potential of native title as a space for the recognition of indigenous legality.[121] It denies indigenous groups their right of self-determination in the most fundamental, ontological sense, by assuming the power to construct indigenous identity.[122]

Second, the majority approach is colonial in a historiographical sense. The majority approach colonises Yorta Yorta history by allowing a colonial voice to speak for it, to say what it was, and is.[123] The Yorta Yorta are admitted into the historical narrative ‘only to evidence their historical demise, and so to present their lack of authenticity.’[124] The tradition offered by the majority is not, as G K Chesterton described tradition, a ‘democracy of the dead’, ‘giving votes to the most obscure of all classes, our ancestors’[125] — it is an empire of the dead, subjecting the Yorta Yorta to the rule of a dead colonialist, Edward Curr.

The ‘tide of history’ which threatens indigenous Australians’ title is a tide of colonialism. It is a tide which forces ‘history’ onto indigenous people who have previously lived in a different conceptualisation of time, forcing them to conceive and describe their cultures in the colonial historiographical terms of ‘history’, rather than in their own narratives. Indigenous claimants are forced to account for their traditions, their development, their actions as a community, not in their own language or narrative systems, not in ‘dreamings’, but in the ‘history’ of the common law.[126]

Third, as this last discussion suggests, the majority approach to ‘tradition’ colonises the very idea of tradition — the epistemological foundation of native legal interests — by defining tradition in terms and concepts foreign to indigenous narratives. By focusing on the ‘adaptation’ of specific practices to changed circumstances, and discounting the possibility of subversion, revival and borrowing within and of ‘traditional’ practice, the majority approach appears to adopt a deeply Eurocentric epistemology, predicated on a linear conception of social evolution.[127] If we understand traditions as sets of information, as Patrick Glenn suggests, then it makes sense that the boundaries of the tradition — what information forms a part of the tradition — should be defined by the tradition itself, and not by outsiders.[128] How a tradition develops, while retaining its traditional character, should be determined by reference to the tradition itself, and not according to the misconceptions and preconceptions of another tradition. The majority judged indigenous traditions not by what information those traditions determine to be essential, but by what an outsider, Edward Curr, thought to be interesting. The consequence of such an approach is what Stewart Motha has described as a ‘recognition of sameness’, rather than difference, ‘a continuation of colonial rule whereby the original inhabitants are forced to accept the invader’s law and its translation of their relationship to the land.’[129]

V POSSIBILITIES AND IMPLICATIONS

In the final section of this case note, I want to draw out a number of the possibilities and implications of the alternative socio-legal order approach — specifically in relation to a number of issues currently before the High Court in the appeal in Ward, and recently touched on in the decision in Yarmirr, handed down subsequent to the Full Federal Court’s decision in Yorta Yorta.

The first set of implications of the socio-legal order approach concerns the nature of extinguishment. It is appropriate to provide a brief overview of the basic ‘rules’ of extinguishment, before reviewing the impact that the adoption of a socio-legal order approach would have on our understanding of those rules. The rules of extinguishment of native title find their source exclusively in the common law, and not at all in indigenous legal traditions.[130] Native title may disappear in one of two ways: it may expire due to the abandonment of the indigenous tradition by the indigenous people;[131] or it may be extinguished by ‘a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.’[132] In the former case, it is the common law which determines when and how abandonment has occurred; in the latter, it is the non-indigenous sovereign that has the power to extinguish native title.

The socio-legal order approach emphasises that, under these rules, ‘extinguishment’ does not in fact extinguish any underlying indigenous title, but rather is a withdrawal by one legal tradition or order (the common law) of its recognition of aspects of another tradition or order (the indigenous tradition).[133] As an ‘intercommunal body of norms governing indigenous/non-indigenous interaction’,[134] native title has a distinctly colonial colour, since the non-indigenous tradition maintains the sole and unfettered power to withdraw its recognition of the indigenous tradition while using the nature of the indigenous tradition as a justification for the withdrawal of this recognition and the protection of its own interests. Native title at once holds out the protection of the common law and allows for its summary and permanent removal, creating a title which is ‘not as good as other titles’.[135] Native title offers a doctrine which, by placing the Anglo-Australian Crown — and not any indigenous authority — in the position of non-justiciable, prerogative power to deny indigenous land rights, reproduces the colonial dynamic of terra nullius.[136]

Understanding extinguishment as the withdrawal of recognition also has implications for the question of partial extinguishment, presently before the High Court in Ward. The socio-legal order approach suggests that the common law’s withdrawal of its recognition of some aspects of the indigenous tradition governing the community’s relationship to land is a question of policy, requiring the weighing of non-indigenous interests against the effect of recognising indigenous interests. Since those effects may change over time, it may be appropriate in some cases for the common law to later re-examine the question of recognition, perhaps granting recognition of aspects of the indigenous tradition which, though they have gone unrecognised by the common law for a period, have survived in the underlying indigenous tradition. This is, in fact, what is contemplated in the concept of the revival of native title.[137]

Such an approach can accommodate existing native title jurisprudence. In Ward, the majority described an ‘inconsistency of incidents’ test, established by the High Court in Wik, confirmed by it in Fejo and applied by the Full Federal Court in Yarmirr.[138] They described this test as follows:

The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. The question is whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant. If they cannot, then by necessary implication the native title rights are extinguished.[139]

The socio-legal order approach emphasises simply that this process of legal ‘comparison’ is, equally, a social process, a choice by one tradition of whether or not to recognise aspects of the other tradition. Fejo made it very clear that, as a matter of policy, the Australian common law chooses, once and for all, not to recognise any aspects of indigenous traditions affected by the grant of freehold.[140] But Yanner equally indicates that the High Court is prepared to contemplate a middle ground, somewhere between outright recognition and once and for all non-recognition. Its description of this middle ground as the ‘regulation’ of native title[141] contains an implicit acknowledgment that the aspects of indigenous traditions which the non-indigenous sovereign will recognise may change over time.

A similar trend is revealed in the recent High Court decision in Yarmirr. There, the majority described the process of recognition in these terms:

Thus the question about continued recognition of native title rights requires consideration of whether and how the common law and the relevant native title rights and interests could co-exist. If the two are inconsistent, it was accepted in Mabo [No 2] that the common law would prevail. (The central issue for debate in Mabo [No 2] was whether there was an inconsistency.) If, as was held in Mabo [No 2] in relation to rights of the kind then in issue, there is no inconsistency, the common law will ‘recognise’ those rights. That is, it will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them. It will ‘recognise’ the rights by giving effect to those rights and interests owing their origin to traditional laws and customs which can continue to co-exist with the common law the settlers brought.[142]

This passage suggests two important things. First, it suggests that something akin to the socio-legal order approach may be gaining the upper hand in the High Court, since the Court increasingly overtly recognises the process of recognition as a process of negotiation of co-existence between two socio-legal orders. Second, it represents a shift towards a presumption of recognition: if there is no inconsistency, the common law ‘will’ recognise those rights.

There is an important social purpose to be served by the common law adopting a presumption that it will continue to recognise indigenous traditions, and grant native title, except to the extent that they are inconsistent with prior, non-indigenous rights. Such a presumption of recognition not only provides certainty, but also offers a more meaningful form of protection to indigenous traditions. At a hermeneutic level, it offers an understanding of indigenous traditions as flourishing traditions, counteracting the colonial imagery of ‘dying’ indigenous traditions and races. The ‘presumption of adaptation’, a term I used earlier to describe Black CJ’s presumption that the Yorta Yorta tradition survived and adapted during evidentiary silences, offers a similar hermeneutic shift. These are, in themselves, important steps the common law can take to throw off the colonial characteristics of native title’s heritage; but they also offer more meaningful ways of dealing with the extinguishment of native title by the abandonment of traditions by indigenous people. By adopting these presumptions, the Australian common law will signal that it is alive to the historical possibility of practices of cultural resistance and subversion, and that it will not necessarily conclude — as Olney J had, not only in Yorta Yorta, but also in Yarmirr[143] and Hayes v Northern Territory[144] — that evidentiary silences suggesting a lack of observance or enforcement of historical laws and customs indicate the abandonment, by an indigenous community, of an indigenous tradition. More importantly, it will reject the current approach, in which ‘the suppression of law and culture through the colonisation process ... is rewarded with the denial of recognition or protection.’[145]

The second set of implications to be drawn from the socio-legal order approach relates to whether to characterise native title as a ‘bundle of rights’.[146] This question was not specifically addressed in Yorta Yorta, but the majority’s reasons nevertheless reveal some of the problems with the bundle of rights approach. By comparing indigenous practices, laws and customs at different points in the historical record with an earlier bundle of practices, laws and customs defined in and by the writings of Edward Curr, the majority effectively applied a bundle of rights approach to the case. Under this approach, a bundle of practices loses its ‘traditional’ character when it fails adequately to resemble the earlier, ‘traditional’ bundle; at this point, each native title right or interest embodied in one of the practices disappears.[147]

The error of the majority’s approach is to treat the individual sticks within the bundle as dead sticks, removed from the growing body of the tree, distinct traditions disassociated from each other. According to the majority approach, once a stick or right is abandoned or broken, it is lost and cannot be revived.[148] By contrast, the socio-legal order approach treats indigenous traditions not as bundles of individual sticks or rights, but more as organic growing systems, or perhaps ‘trees’. The breaking of one stick or branch of the tradition does not determine whether the tradition survives, since new rights may grow to replace the abandoned ones and the organism can repair itself. The tradition is not lost until the entire trunk, the connection with the land, is severed, or the system is washed away by the tide of history. Put another way, it is not the unchanging nature of the contents of the tradition — the data within the set — that matters, but the ongoing existence of the set as a set — the tradition as a tradition.

Such an understanding deals more appropriately with the hermeneutic realities of indigenous traditions, the organic nature of ‘Aboriginal ownership [as] primarily a spiritual affair rather than a bundle of rights’.[149] If the High Court does adopt a bundle of rights characterisation of native title, it will be emphasising the colonial characteristics of the native title tradition, which require the framing of indigenous traditions within the colonist’s epistemological framework — rights. Instead, it should characterise the determination of native title as a question of the existence of a communally held tradition, from which ‘native title rights and interests’ issue, or upon which they are pendant[150] or parasitic.[151]

There are some suggestions in the recent High Court decision in Yarmirr that it may, indeed, be moving in this direction. The majority took particular care to stress that

because native title has its origin in traditional laws and customs, and is neither an institution of the common law nor a form of common law tenure, it is necessary to curb the tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title rights and interests in the language of the common law property lawyer.[152]

Similarly, they suggested that the process of recognition of native title ‘rights’ is one of ‘identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community.’[153] However, the High Court did not specifically make the legal tradition or order itself, rather than the ‘right’, the object of inquiry. The continuing existence of an indigenous socio-legal tradition should be central to native title determinations. As Lisa Strelein recently put it, ‘[t]he inquiry should be first to determine if the group asserts an established system of law that they recognise as the source of rights and obligations over a particular tract of land. If so then prima facie they hold native title.’[154]

The threshold question for the existence of native title should not be, as it was for the majority in Yorta Yorta, whether individual rights — individual sticks — have survived since the acquisition of sovereignty, but whether the tradition — the bundle — remains identifiable as the descendant of the earlier bundle or tradition. It should not matter that there is not a single stick in common, that none of the rights practised now were practised by the Yorta Yorta of 1788 or the 1840s, so long as the rights practised now exist within a legal order descended from the earlier tradition, within which those earlier rights existed. Only once the existence of such a socio-legal tradition is established should the inquiry move to the substance of those rights and interests.[155]

The socio-legal order approach has a third set of implications relating to biological descent. The focus on tradition urges a relaxation of the approach to biology adopted by the tradition of native title, perhaps even beyond the approach of the majority in Ward. As Webber notes, the focus in Yorta Yorta on tracing genealogies back to specific individuals present in the claim area at the time of annexation seems misplaced.[156] The central issue is whether the tradition has been kept alive by a method accepted by that tradition as a part of that tradition, and not whether that method involves strict biological descent, intermarriage, adoption or even merging with other traditions.[157]

Finally, the socio-legal order approach suggests that the common law should be prepared to embrace commercial manifestations of native title, where indigenous traditions have evolved to embrace commercial values.[158] The failure of the common law to recognise such native title rights, in those circumstances, might derive from the same colonial hermeneutic which underpins the approach of the majority — the attempt to construct a frozen, pre-modern indigenous identity, inherently incapable of embracing modern commercialism, an ‘other’ counter-posed to the non-indigenous identity represented by the common law.

VI CONCLUSIONS: TRADITION, SOVEREIGNTY AND DIFFERENCE

I have attempted in this case note to explain how the two different approaches in Yorta Yorta offer judges a social choice in the development of the native title tradition. Native title offers an opportunity for the mediation of indigenous/non-indigenous relations and norms.[159] On the evidence of Yorta Yorta, that opportunity is being used to create a native title tradition which subjects Australia’s indigenous people to a neo-colonialist tradition. The ‘restructuring of that relationship’ which Webber hopes for[160] may turn out to be a simple rebadging of the old colonial relationship.

The question of ‘tradition’ at the heart of Yorta Yorta is which aspects of indigenous orders the common law is prepared to recognise, give expression to and protect, through native title. Black CJ’s judgment, in particular, offers the basis for an approach which recognises the ‘continued relevance of autonomous indigenous legal traditions’,[161] the basis for a partial reconciliation of the common law and indigenous legal orders.[162]

At the deepest level, the question of ‘tradition’ is a recasting of the question of sovereignty. As Webber notes, native title recognises the continuing ability, and right, of indigenous communities to regulate their own social relations through their fundamental connection to the land. It raises questions both of governance[163] and self-government.[164] It contains an implicit recognition of indigenous political autonomy inconsistent with any attempt by the common law to determine for indigenous people a ‘static set of rights’.[165] Traditionally, the common law frames such issues in terms of ‘sovereignty’.[166] It may be that native title acts as a recognition of the moral and civic equality of indigenous people,[167] and of their indigenous political autonomy,[168] but that this falls short of sovereignty.[169] On the other hand, it may be that, although it goes unrecognised, indigenous sovereignty is itself the source of many of the differences with which native title struggles, including its inalienability (except by surrender to the Crown), its communality, its intertwining with the laws and customs of the indigenous community, and its other hermeneutic realities.[170]

A full answer to those questions is beyond the scope of this case note. What Yorta Yorta tells us, though, is that, even if the question of sovereignty per se remains non-justiciable,[171] the common law can deal with these questions more effectively than it has by adopting an approach which grants greater respect to the hermeneutic differences of indigenous traditions.

Yorta Yorta indicates that judges have a social choice. On the one hand, they can choose to construct a tradition of native title which colonises indigenous tradition, and its underlying sovereignty or political autonomy, freezing it in a form that serves the purposes of the non-indigenous tradition. On the other hand, they can choose an approach which attempts to deal with the continuing evolution and complexity of indigenous traditions, and which attempts to give voice to those traditions.

The recent decision of the majority of the High Court in Yarmirr, in which it adopted the ‘inconsistency’ approach to questions of recognition of native title and provided a nuanced analysis of the social context of ‘rights’, may reflect such an approach. It has numerous implications for the likely outcome in the appeal in Ward, many of which have been touched on here. Whether this is an indicator of a broader shift by the Court to something akin to the socio-legal order approach to native title, and a move away from the colonial tradition of native title, it is perhaps too early to say. The majority did, however, explicitly state that ‘[d]isputes of the present type require examination of the way in which two radically different social and legal systems intersect.’[172] That seems to suggest the movement of the High Court in such a direction. This is a movement to be encouraged. Only a socio-legal order approach truly ‘recognises the inherent, pre-existing and continuing rights of Indigenous peoples ... to determine their relationship with their land, and with each other in relation to that land.’[173] Only this approach is right in law.

JAMES COCKAYNE[*]

[*] [2001] FCA 45; (2001) 180 ALR 655 (‘Yorta Yorta’).

[1] Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) (‘Yorta Yorta (First Instance)’).

[2] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655 offers insights into a number of other crucial areas of native title jurisprudence, notably the treatment of oral histories, questions of the burden of proof (see especially Branson and Katz JJ at 693–5) and the issue of how native title burdens the Crown’s radical title. While some of these issues are touched on in this discussion, they deserve a more detailed investigation than space will allow here. My summary of the judgments consequently focuses on those aspects which impact on the interpretation of the term ‘traditional’.

[3] The idea that native title may recognise indigenous ‘legal orders’ is drawn from Jeremy Webber, ‘Native Title As Self-Government’ [1999] UNSWLawJl 11; (1999) 22 University of New South Wales Law Journal 600, 602.

[4] Western Australia v Ward (P59/2000), heard together with Ward v Crosswalk Pty Ltd (P67/2000), A-G (NT) v Ward (P62/2000) and Ningarmara v Northern Territory (P63/2000) from 6 to 16 March 2001. The High Court handed down its decision in Commonwealth v Yarmirr [2001] HCA 56 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 11 October 2001) (‘Yarmirr’) during the editing of this case note. Where possible, references to relevant discussions in the High Court’s decision have been included. It has not, however, been possible to undertake a full review of that decision to determine whether it reflects the ‘colonial’ tradition of native title discussed in this case note or the more reconciliatory path proposed.

[5] The land claimed included vacant and reserved Crown lands, state forest and parkland, various kinds of reserves, Aboriginal freehold land under the Aboriginal Land Rights Act 1983 (NSW), and a mine located on a 42 000 acre ‘grazing occupation permit’.

[6] It should also be noted that the hearing was completed before the 1998 amendments to the NTA came into force. The colonial characteristics of native title discussed in this case note have been exacerbated by many of those changes, particularly those relating to extinguishment.

[7] The States were New South Wales, Victoria and South Australia. Other respondents included the Murray Darling Basin Commission, Telstra Corporation Limited, the New South Wales Aboriginal Land Council, the Greater Shepparton City Council, a number of shire councils, various sporting and recreational clubs, and persons holding wood, grazing, tourism and water interests in the claimed area.

[8] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 664 (Black CJ).

[9] Ibid 682 (Branson and Katz JJ).

[10] Yorta Yorta (First Instance) [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [129].

[11] Ibid [106].

[12] Ibid [109]–[121], especially [118].

[13] Ibid [118].

[14] Ibid [118]–[119].

[15] Ibid [121].

[16] [1992] HCA 23; (1992) 175 CLR 1, 43 (‘Mabo’): ‘when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.’

[17] Yorta Yorta (First Instance) [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [129].

[18] Ibid [121]–[134].

[19] The phrase is taken from the judgment of Lee J in Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 502 (‘Ward (First Instance)’):

If native title has continued since the assertion of sovereignty the rights available under that title, and the persons who may exercise those rights, will be ascertained by reference to practices that are based on traditional laws and customs, not by inquiring whether the traditional practices observed today are in the same form as before as if frozen in time.

[20] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 659–60 (Black CJ). Section 223 of the NTA 1993 (Cth) creates a statutory regime protecting native title rights and interests based in part on those native title rights recognised by the common law. Section 223 provides (emphasis in original):

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

[21] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 659 (Black CJ).

[22] Ibid.

[23] Ibid 660.

[24] Ibid.

[25] Ibid 659.

[26] Ibid.

[27] Ibid 698–9.

[28] Ibid 703.

[29] Ibid 677, 681.

[30] Ibid 679, 681.

[31] Ibid 681.

[32] At the time of writing, preliminary materials have been filed with the High Court, but no application book has yet been filed, nor any date for special leave to appeal scheduled. The case is No M19/2001 in the High Court.

[33] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 664–5 (Black CJ), 686–7 (Branson and Katz JJ). See also below Part III(A).

[34] Ibid 674–7 (Black CJ), 692 (Branson and Katz JJ).

[35] Ibid 689–92.

[36] Ibid 701.

[37] Ibid 682–9.

[38] Ibid 685–6, 688.

[39] Ibid 683–9; see especially at 686–7. See, eg, Mabo [1992] HCA 23; (1992) 175 CLR 1, 61, 70 (Brennan J), 110 (Deane and Gaudron JJ), 192 (Toohey J); Ward (First Instance) [1998] FCA 1478; (1998) 159 ALR 483, 502; Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171, 194 (Beaumont and von Doussa JJ) (‘Yarmirr (FFC)’).

[40] See Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 686, 689, 692–3 (Branson and Katz JJ). See also Mabo [1992] HCA 23; (1992) 175 CLR 1, 70 (Brennan J); cf at 110 where Deane and Gaudron JJ contemplated the possible survival of native title after the abandonment of traditional laws and customs.

[41] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 688. See also Mabo [1992] HCA 23; (1992) 175 CLR 1, 110 (Deane and Gaudron JJ); Ward (First Instance) [1998] FCA 1478; (1998) 159 ALR 483, 502. The examples Branson and Katz JJ provide of such evolution are the adaptation to accommodate female judges into the tradition of the public presentation by new judges of their commission, and the evolution of hunting traditions to permit the hunting of new forms of wildlife.

[42] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 687, quoting Ward (First Instance) [1998] FCA 1478; (1998) 159 ALR 483, 502 (Lee J).

[43] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 687.

[44] Ibid.

[45] Ibid 688. The majority noted that, while such a subjective characterisation may not be a sufficient condition for a law or custom to be characterised as ‘traditional’, it may be a necessary one.

[46] Ibid 688–9.

[47] See Yorta Yorta (First Instance) [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [59], [105]–[106], [109].

[48] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 698–9.

[49] Ibid 700–1.

[50] Ibid 701.

[51] Ibid.

[52] Ibid 688–9.

[53] Ibid 700–1.

[54] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 685, 700, quoting Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).

[55] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 701–2.

[56] Ibid 702.

[57] Ibid 700.

[58] Ibid 702.

[59] Ibid 696.

[60] Ibid 692.

[61] The majority concluded that Olney J was probably in error to the extent that he acted on the basis that the claim must fail if the claimants could not prove the nature of the traditional laws and customs of their forebears in 1788, but that, even if he did make that mistake, it was not significant for the outcome of the appeal: ibid.

[62] Ibid 700.

[63] Ibid.

[64] Ibid 703–4.

[65] Ibid 703.

[66] Black CJ recognised the centrality of ‘tradition’ to the outcome of the case: ibid 664.

[67] Ibid 681.

[68] Ibid 677, 681.

[69] Ibid 679, 681.

[70] Ibid 687.

[71] Ibid 666.

[72] Ibid. See also Yarmirr (FFC) [1999] FCA 1668; (1999) 101 FCR 171, 194 (Beaumont and von Doussa JJ).

[73] See Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 688–9.

[74] See ibid 666.

[75] Ibid 667.

[76] Ibid 666 (Black CJ); 688 (Branson and Katz JJ). Interestingly, Black CJ cites only the first limb of this definition: ‘the handing down of statements, beliefs, legends, customs etc, from generation to generation, especially by word of mouth or by practice’. Branson and Katz JJ also cite the second limb: ‘that which is so handed down’. The first limb provides an understanding of tradition as a process; the second, as a bundle of practices. The first is closer to Black CJ’s approach, the second to that of the majority.

[77] Ibid 700.

[78] Ibid 669. On the question of occupation, Black CJ concurred with the approach of Beaumont and von Doussa JJ in Western Australia v Ward [2000] FCAFC 191; (2000) 99 FCR 316, 382 (‘Ward’), where they rejected the submission of Western Australia that physical occupation of the claimed land is a necessary requirement for the proof of continuing connection with the land. Black CJ also noted that Beaumont and von Doussa JJ observed (at 383) that the comments of Toohey J in Mabo [1992] HCA 23; (1992) 175 CLR 1, 188 were not to be

understood as laying down the requirement of actual physical presence as essential to the maintenance of a connection by traditional laws and customs, in circumstances where that physical presence is no longer practicable or in circumstances where access to traditional lands is restricted or prevented by the activities of European settlers.

On the question of practicability, see also Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 665 (Black CJ), quoting Mabo [1992] HCA 23; (1992) 175 CLR 1, 59–61, 70 (Brennan J).

[79] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 670.

[80] Ibid 680. See, eg, Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).

[81] [1999] HCA 53; (1999) 201 CLR 351 (‘Yanner’).

[82] See Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 668.

[83] Yanner [1999] HCA 53; (1999) 201 CLR 351, 382.

[84] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 668.

[85] Ibid 668.

[86] [2000] FCAFC 191; (2000) 99 FCR 316.

[87] See Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 668–9. Black CJ supported the approach of the majority in Ward [2000] FCAFC 191; (2000) 99 FCR 316, 382 (Beaumont and von Doussa JJ) on this point. Their Honours stated that although it was

impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area ... it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land.

[88] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 670.

[89] Ibid.

[90] Ibid 677.

[91] Ibid 679; see also at 678–9.

[92] Ibid 675.

[93] Ibid.

[94] Ibid 680.

[95] Ibid 674.

[96] Ibid 675.

[97] Ibid; see also at 676–7.

[98] Ibid 676.

[99] Ibid 673.

[100] Ibid.

[101] Ibid.

[102] Ibid.

[103] Jeremy Webber, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ [1995] SydLawRw 1; (1995) 17 Sydney Law Review 5.

[104] Ibid 10.

[105] H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2000) 23.

[106] On the ‘traditional’ characteristics of the common law, and especially the system of precedent, see ibid 205–50.

[107] Mabo [1992] HCA 23; (1992) 175 CLR 1, 59 (Brennan J): though native title is ‘recognised by the common law, [it] is not an institution of the common law’. See also Wik Peoples v Queensland (1996) 187 CLR 1, 91 (Brennan CJ); Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 128 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (‘Fejo’).

[108] Cf Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 115.

[109] See Luke McNamara and Scott Grattan, ‘The Recognition of Indigenous Land Rights as “Native Title”: Continuity and Transformation’ (1999) 3 Flinders Journal of Law Reform 137, 159.

[110] Mabo [1992] HCA 23; (1992) 175 CLR 1, 43 (Brennan J).

[111] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 685 (Branson and Katz JJ).

[112] Yarmirr [2001] HCA 56 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 11 October 2001) [97]–[100] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[113] In Delgamuukw v British Columbia [1997] 3 SCR 1010, 1081; 153 DLR (4th) 193, 241 (‘Delgamuukw’), Lamer CJ (Cory, Major and McLachlin JJ concurring) espoused a characterisation of aboriginal title in Canada as a hybrid: ‘its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems ... [I]t must be understood by reference to both common law and aboriginal perspectives.’

[114] See Noel Pearson, ‘The Concept of Native Title at Common Law’ in Galarrwuy Yunupingu (ed), Our Land Is Our Life: Land Rights Past, Present and Future (1997) 150.

[115] [1992] HCA 23; (1992) 175 CLR 1, 58:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

[116] See, eg, ibid 86–7. Deane and Gaudron JJ were here arguing that the existence of native title must require either the modification of the pre-existing native interest into some form recognised by the common law, or a modification of the common law to accommodate the pre-existing native interest. Whether the common law has in fact been modified is a question to be answered from the common law perspective; I argue here that it has. Whether the native interest has, analogously, been modified to accommodate the common law’s demands is a question to be answered from the perspective of each indigenous legal tradition. It is not a question I am qualified to answer. Such an accommodation may, however, represent precisely that kind of evolution of tradition to which Yorta Yorta draws attention.

[117] See, eg, ibid 89 (Deane and Gaudron JJ).

[118] See, eg, Glenn, above n 105, 21.

[119] Cf Valerie Kerruish and Jeannine Purdy, ‘He “Look” Honest — Big White Thief’ (1998) 4(1) Law/Text/Culture 146, 162–3; Penny Pether, ‘Principles or Skeletons? Mabo and the Discursive Constitution of the Australian Nation’ (1998) 4(1) Law/Text/Culture 115.

[120] See James Clifford, The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art (1988) 338.

[121] Cf McNamara and Grattan, above n 109, 142; Strelein, ‘Conceptualising Native Title’, above n 108, 115.

[122] See Kerruish and Purdy, above n 119, 161–2.

[123] See the discussion of the misuse of history in the first instance decision in Delgamuukw v British Columbia [1991] 3 WWR 97 in Patricia Wallace, ‘Grave-Digging: The Misuse of History in Aboriginal Rights Litigation’ (1998) 30 University of Miami Inter-American Law Review 489, 495–6. See also the discussion of the evidentiary problems of aboriginal title litigation in Michael Asch and Catherine Bell, ‘Definition and Interpretation of Fact in Canadian Aboriginal Title Litigation: An Analysis of Delgamuukw’ (1994) 19 Queen’s Law Journal 503.

[124] Valerie Kerruish and Colin Perrin, ‘Awash in Colonialism’ [1999] AltLawJl 1; (1999) 24 Alternative Law Journal 3, 4.

[125] G K Chesterton, The Collected Works of G K Chesterton (David Dooley ed, 1986) vol 1, 251.

[126] See J G A Pocock, ‘Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi’ (1998) 43 McGill Law Journal 481, 499ff.

[127] Glenn, above n 105, 23–4.

[128] Ibid 12–13. See also Mabo [1992] HCA 23; (1992) 175 CLR 1, 58 (Brennan J).

[129] Stewart Motha, ‘Mabo: Encountering the Epistemic Limit of the Recognition of “Difference”’ [1998] GriffLawRw 4; (1998) 7 Griffith Law Review 79, 80 (emphasis in original).

[130] Michael Detmold, ‘Law and Difference: Reflections on Mabo’s Case’ in Essays on the Mabo Decision (1993) 39, 42; McNamara and Grattan, above n 109, 145–6.

[131] Mabo [1992] HCA 23; (1992) 175 CLR 1, 70 (Brennan J).

[132] Ibid 69 (Brennan J).

[133] See Strelein, ‘Conceptualising Native Title’, above n 108, 117; Lisa Strelein, ‘The Vagaries of Native Title: Partial Recognition of Aboriginal Law in the Alice Springs Native Title Case’ [2000] IndigLawB 4; (1999) 4(26) Indigenous Law Bulletin 13, 14. See also Pearson, above n 114; Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32, 64 (Olney J).

[134] Webber, ‘The Jurisprudence of Regret’, above n 103, 10.

[135] Kent McNeil, ‘Native Title and Extinguishment’ (Paper presented at the Federation for Aboriginal and Islander Research Action Native Title Conference, 11 May 1995) 42, quoted in Strelein, ‘Conceptualising Native Title’, above n 108, 122.

[136] For further discussion of the colonial commonalities of terra nullius and extinguishment, see David Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ [1996] SydLawRw 1; (1996) 18 Sydney Law Review 5; Kerruish and Purdy, above n 119.

[137] See especially Ward [2000] FCAFC 191; (2000) 99 FCR 316, 503–6 (North J). See also Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404; (1997) 150 ALR 467.

[138] Ward [2000] FCAFC 191; (2000) 99 FCR 316, 341 (Beaumont and von Doussa JJ).

[139] Ibid.

[140] [1998] HCA 58; (1998) 195 CLR 96, 126 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[141] Yanner [1999] HCA 53; (1999) 201 CLR 351, 372 (Gleeson CJ, Gaudron, Kirby and Hayne JJ). Cf Ward (First Instance) [1998] FCA 1478; (1998) 159 ALR 483, 508 (Lee J).

[142] Yarmirr [2001] HCA 56 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 11 October 2001) [42] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (citation omitted).

[143] Yarmirr (First Instance) [1998] FCA 771; (1998) 82 FCR 533.

[144] [1999] FCA 1248; (1997) 97 FCR 32, 45.

[145] Strelein, ‘The Vagaries of Native Title’, above n 133, 13.

[146] On the bundle of rights approach to native title, see generally Katy Barnett, ‘Western Australia v Ward — One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis’ [2000] MelbULawRw 17; (2000) 24 Melbourne University Law Review 462.

[147] See Strelein, ‘Conceptualising Native Title’, above n 108, 104.

[148] See also Anderson v Wilson [2000] FCA 394; (2000) 97 FCR 453, 471–3 (Black CJ and Sackville J).

[149] R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, 358 (Brennan J).

[150] Ward [2000] FCAFC 191; (2000) 99 FCR 316, 346, 349 (Beaumont and von Doussa JJ).

[151] Delgamuukw [1997] 3 SCR 1010, 1081; 153 DLR (4th) 193, 241 (Lamer CJ).

[152] Yarmirr [2001] HCA 56 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 11 October 2001) [11].

[153] Ibid [16].

[154] Strelein, ‘Conceptualising Native Title’, above n 108, 107.

[155] See also Mabo [1992] HCA 23; (1992) 175 CLR 1, 187 (Toohey J).

[156] Jeremy Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’ in Duncan Ivison, Paul Patton and Will Sanders (eds), Political Theory and the Rights of Indigenous Peoples (2000) 64.

[157] Yorta Yorta [2001] FCA 45; (2001) 180 ALR 655, 680 (Black CJ); Ward [2000] FCAFC 191; (2000) 99 FCR 316, 379 (Beaumont and von Doussa JJ), 486–7 (North J, agreeing on this point).

[158] See generally Yarmirr (FFC) [1999] FCA 1668; (1999) 101 FCR 171.

[159] Webber, ‘The Jurisprudence of Regret’, above n 103, 17; Webber, ‘Mabo’s Implications for Australian Constitutionalism’, above n 156.

[160] Webber, ‘Mabo’s Implications for Australian Constitutionalism’, above n 156, 61.

[161] Ibid 62. For Webber, this recognition springs from the incorporation of ‘the mechanisms for the allocation of interests and the means of change’ within the construct of native title: see Webber, ‘Native Title As Self-Government’, above n 3, 602.

[162] Cf Webber, ‘Native Title As Self-Government’, above n 3, 602–3.

[163] Webber, ‘Mabo’s Implications for Australian Constitutionalism’, above n 156.

[164] See Webber, ‘Native Title As Self-Government’, above n 3, 602.

[165] Webber, ‘Mabo’s Implications for Australian Constitutionalism’, above n 156, 63.

[166] See Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State and Nation (1996).

[167] Webber, ‘The Jurisprudence of Regret’, above n 103, 11.

[168] Webber, ‘Mabo’s Implications for Australian Constitutionalism’, above n 156, 62–3.

[169] Ibid 63.

[170] Strelein, ‘Conceptualising Native Title’, above n 108, 122–4. See further Webber, ‘Mabo’s Implications for Australian Constitutionalism’, above n 156, 71.

[171] This finds expression in the ‘act of state’ doctrine, on the basis of which a number of Australian common law courts have refused to rule on the continued existence of indigenous sovereignty: see Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118; Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193; Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45. Scott Grattan and Luke McNamara, ‘The Common Law Construct of Native Title: A “Re-Feudalisation” of Australian Land Law’ [1999] GriffLawRw 3; (1999) 8 Griffith Law Review 50, 54–7 argue that this non-justiciability derives from a problematic treatment of the public–private dichotomy, with the result that native title is prepared to deal with the private aspects of indigenous laws and customs (such as land tenure) but not their public aspects (sovereignty).

[172] Yarmirr [2001] HCA 56 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 11 October 2001) [10].

[173] Strelein, ‘Conceptualising Native Title’, above n 108, 123.

[*] BA (Hons), Student of Law, The University of Sydney. I would like to acknowledge the invaluable guidance of Professor Jeremy Webber in preparing this case note. My thanks go also to the anonymous reviewers and the editors for their comments and suggestions. Any errors remain my own.